Race discrimination cases are
rarely straightforward. It is rare for employers to openly
treat people differently because of their race.
It is the task of an employment tribunal to decide whether
the real reason for different treatment is in fact, race.
What is race discrimination?
Racial discrimination can arise in any of four ways:
direct
discrimination
race
discrimination by way of harassment
indirect
discrimination
victimisation
Such discrimination
can apply at interview stage, the terms upon which you are
being offered employment (or indeed whether you are offered
employment at all), in promotion and transfer opportunities,
or being dismissed or subjected to any other detriment.
Direct discrimination
A person discriminates against another by treating that other
less favourably than another person. Where such discrimination
is on racial grounds it is unlawful. This apparently straightforward
position often creates difficulty for tribunals. Employers
will almost always deny that the alleged discrimination had
anything to do with race.
In this situation the tribunal has to find the true and effective
reason for the employer's action. The motive of an employer
is irrelevant.
Direct discrimination also covers racial harassment. Under
the Race Relations Act 1976, being subjected to racial harassment
is being "subject to any other detriment".
Harassment
Until 2003 harassment was not expressly outlawed by the Race
Relations Act. A worker who had been racially harassed would
have brought a claim for direct discrimination.
The new regulations, which were passed on 19 July 2003, outlaw
harassment on grounds of race, ethnic or national origins.
Harassment occurs when, on the grounds of race or ethnic or
national origins, the harasser engages in unwanted conduct
which has the purpose or effect of (a) violating the victim's
dignity or (b) creating an intimidating, hostile, degrading,
humiliating or offensive environment for the victim. Conduct
shall be regarded as having the effect of violating someone's
dignity or creating an intimidating environment only if in
all the circumstances, including the victim's perception,
it could reasonably be seen as having that effect.
The definition of harassment is wide enough to include most
types of harassment including abusive language, excessive
monitoring of work, excessive criticism of someone's work
etc. However, the concept of "reasonableness" may
in some cases make it difficult to win such cases. Under the
other provisions of the Race Relations Act the test of whether
someone had suffered a violation of their dignity is subjective.
Indirect discrimination
Indirect discrimination is where an employer operates a policy
which on the face of it has nothing to do with race but in
practice the effect is to disadvantage ethnic minorities.
A person discriminates against another when he applies a provision,
or practice which he applies or would apply equally to everyone
but which:
puts or would put persons from one racial group at a particular
disadvantage when compared to other persons;
which
puts that other at that disadvantage, and
which
he cannot show to be a proportionate means of achieving
a legitimate aim.
Another
requirement for indirect discrimination is that the discriminatory
action cannot be justified irrespective of the racial origins
of the complainant. The onus is on the employer to prove that
the condition is justified.
For example, where it is stated that an applicant for a manual
job should be able to read and write English where there is
virtually no reading or writing required is unlikely to be
justifiable.
Victimisation
Anyone involved in bringing proceedings, making allegations
or giving information in connection with the Race Relations
Act is protected by the Act against victimisation. That means
that they must not be subject to any detriment as a result.
Who is liable under the Act?
Liability for race discrimination usually lies with the employer
and/or any other employee who is found to have discriminated.
Employers will be liable for the discriminatory acts of employees
where those employees are acting in the course of their employment.
This is known as vicarious liability.
Where the acts complained of are done by another employee,
it is usually wise to bring the employment tribunal application
against both the employee as well as the employer.
Employers have a defence to a complaint of discrimination
based on vicarious liability if they can prove that they took
all reasonably practicable steps to prevent the discrimination.
It is rare for employers to be able to succeed with this defence,
but if they do, the claim can continue against the individual
employee.
Who
is covered by the Act?
The Race Relations Act protects both applicants for jobs and
employees. It may also protect contract workers and self employed
workers.
All employees and workers are covered irrespective of their
length of service or the number of hours they work each week.
The Act also makes it unlawful to instruct or pressurise a
person to act in a way prohibited by the Race Relations Act.
So protection extends to a person who has been disadvantaged
because they have refused to carry out instructions which
they believe will discriminate against someone else on the
grounds of their race.
Exceptions
under the Act
Overseas employment
The Race Relations Act applies only to establishments in Great
Britain.
Genuine Occupational Qualification (GOQ) or Genuine Occupational
Requirements (GOR)
The Race Relations Act provides for specific situations in
which race discrimination in the employment field is allowed,
for example in relation to actors, models, personal welfare
services and jobs involving work where food or drink is provided
for which a person of a racial group is required for authenticity
(eg. An Indian restaurant).
Proof
It is for the person making the claim to establish that discrimination
has occurred. The employee has to prove discrimination by
the employer 'on the balance of probabilities'.
This means that, although a tribunal might have doubts as
to whether the employer discriminated, as long as the tribunal
more than half believes that they have it must decide in favour
of the employee.
Once an employee has established facts from which it may be
presumed that discrimination has occurred, then it is up to
the employer to prove that no such discrimination has in fact
occurred.
It is unusual to find direct evidence of racial discrimination.
Few employers are prepared to admit discrimination and those
who are aware of the law may have taken steps to appear to
be acting lawfully.
Whether or not discrimination can be proved will often depend
on what inferences a tribunal can draw from the primary facts.
Where, for example, an employee complains of failure to promote
on racial grounds the evidence may point to the possibility
of racial discrimination. In those circumstances the tribunal
may look to the employer for an explanation that proves there
was no discrimination.
If no such explanation is put forward or if the tribunal finds
the supposed explanation inadequate or unsatisfactory it is
open to the tribunal to infer that the discrimination was
on racial grounds.
Raising a grievance
From October 2004, unless there are special circumstances
(e.g. threats or continuing harassment by the employer) the
employee must write to the employer raising a grievance and
attend one or two meetings before bringing a discrimination
claim to an employment tribunal. This is even where the complaint
relates to disciplinary action short of dismissal or another
grievance. You will not be able to issue your claim in the
tribunal without first raising a grievance.
Race Relations Act questionnaire
The difficulties of proof have been recognised in the Race
Relations Act and provision is made in the Act for a questionnaire
to be used by the applicant. A form may be served on the employer
asking certain standard questions, such as how many people
of a certain racial origin are employed and in respect of
pay and promotional matters.
The replies are admissible in evidence and a refusal to reply
without reasonable excuse, or evasive replies, permit the
tribunal to draw adverse conclusions. An equivocal reply might
also lead a tribunal to infer that there has been racial discrimination.
Remedies
An employment tribunal can award one or more of three remedies
if it finds that an individual has been a victim of race discrimination.
a declaration which is an order declaring what the rights
of the parties are
compensation
a recommendation that the employer
should take certain steps to remove or reduce the discrimination.
Compensation
Unlike in unfair dismissal, there is no ceiling on the amount
of compensation a tribunal can award for race discrimination.
Compensation normally includes an award for injury to feelings
and an award to take into account any loss suffered, for example
loss of wages or pension. The awards for injury to feelings
can vary, however many thousands of pounds is not uncommon.
Compensation may be reduced if the employee did not follow
the statutory grievance procedure.
Time limits
The Race Relations Act imposes strict time limits throughout
the procedure for bringing a case for race discrimination.
Good cases can be lost before they start through hesitation
or delay.
If someone suspects they have been or are being racially discriminated
against they must take advice immediately, contact their union
as soon as possible and raise a grievance under the new statutory
procedure.
The time limit for making a claim for racial discrimination
to the employment tribunal is three months from the act of
discrimination. This time limit can be extended by three months
to allow the statutory grievance procedure to take place.
A discriminatory act may extend over a period of time so that
it may be a continuing act if it takes the form of some policy,
rule or practice in accordance with which decisions are taken
by the employer. In these circumstances the three month period
runs from the end of the continuing act.
Tribunals do have discretion to allow late claims to proceed,
but there must be a good reason why a claim was not made in
time.
Other
aspects of UK employment law for employees include:
Landau
Zeffertt Weir Solicitors